DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Applicant's election with traverse of Group I (claims 1-10) and Species i (claim 5) and iii (claim 7) in the reply filed on 6/4/2026 is acknowledged. The traversal is on the ground(s) that Susler fails to describe or suggest the aqueous composition as claimed including 1-10 wt.% of at least one retarder; and the finding of lack of unity of invention is thus not correct. This is not found persuasive because Susler et al (US 20100197840 A1) in view of Yamakawa et al (US 20080196629 A1) teaches the limitations in claim 1 including 1-10 wt.% of at least one retarder, as stated in the 103 rejection below.
The examiner withdraws the restriction between species i (claim 5) and ii (claim 6) because these two species are not mutually distinct. The restriction between species iii (claim 7) and iv (claim 8) remains because these two species are mutually distinct.
The requirement is still deemed proper and is therefore made FINAL.
Claims 8 and 11-16 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to nonelected inventions and species, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 6/4/2026.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-7 and 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Susler et al (US 20100197840 A1) in view of Yamakawa et al (US 20080196629 A1).
Regarding claims 1 and 3-4, Sulser teaches an aqueous composition Z for admixtures in concrete comprising 20-80 wt% of a polymer P and 0.1-20 wt% of an antifoam M [0001, 0079-0081].
The polymer P comprises monomer A including acrylic acid, methacrylic acid etc. [0019-0022]. Thus, the polymer P is an anionic polymer and reads on the claimed a); and its concentration of 20-80 wt% overlaps the claimed 12-55 wt% of a). A prima facie case of obviousness exists where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" (MPEP 2144.05.I).
The antifoam M includes phosphoric acid esters, such as, for example, tributyl phosphate or triisobutyl phosphate (TIBP), polyalkylene glycols, such as, for example, polypropylene oxides, block copolymers containing ethylene oxide, propylene oxides or butylene oxides, mineral oils or vegetable oils, fatty acid, fatty acid esters, fatty alcohols, alkoxylated fatty acids or fatty alcohols, silicones, silicone esters or a hydrophobic organic compound [0080]. These compounds read on the claimed b) of water insoluble liquid defoamer, as specified by the applicant in claim 3. The concentration of 0.1-20 wt% of an antifoam M overlaps the claimed 15-30 wt% of b).
The recited “plasticizers, water reducers, superplasticizers and workability retainers for inorganic binders” represents a statement of intended use that imparts no additional structure beyond the claimed product and need not be taught by the prior art to read on the claimed invention. See MPEP 2111.02(III). Nonetheless, Sulser teaches the polymer for use as a plasticizer for hydraulically setting compositions, in particular for concrete and mortar [0091].
Sulser teaches that the aqueous composition Z comprises retardants [0088] which reads on the claimed retarder. Sulzer is silent about the amount of the retardants.
In the same field of endeavor, Yamakawa teaches a hydraulic composition for cement mortar [abstract], comprising a setting retarder including hydroxycarboxylic acids in an amount of 0.005-50 parts by weight per 100 parts by weight of the overall system [0018, 0050-0051]. Hydroxycarboxylic acids read on the claimed retarder as specified in claim 4; and its amount of 0.005-50 parts by weight per 100 parts by weight of the overall system overlaps the claimed range of 1-10 weight-% based on 100 weight-% of the aqueous composition. A prima facie case of obviousness exists where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" (MPEP 2144.05.I).
It would have been obvious to one of ordinary skill in the art at the time of the invention to form a hydraulically setting composition according to Sulser including the retardant in an amount of 0.005-50 parts by weight per 100 parts by weight of the overall system, as Yamakawa demonstrates this range to be suitable for similar hydraulically setting composition. This represents the use of a suitable range of retardant in a hydraulically setting composition which is compositionally similar to those of Yamakawa and which is used in similar application. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 416-21 (2007). See MPEP 2141.
Regarding claim 2, Sulser teaches a preferred polymer P having formula (VIII) [0069]:
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wherein, X1 is CO2, etc.; R13 is H, CH3, COOM, etc.; R14 is H or an alkyl having 1 to 5 carbon atoms, etc.; R15 is H, or an alkyl having 1 to 5 carbon atoms, etc.; M is H, alkali metal, alkaline earth metal, ammonium, ammonium cation or mixtures thereof; Y can be -CH2-COO-, etc.; R1, independently of one another, are a mono- or dicarboxylic acid, etc.; R2 is H or alkyl having 1-20 carbon atoms, etc.; R5 is alkyl radical having 1-30 carbon atoms, etc.; R7 is H or methyl; R8 is an alkyl radical having 2-30 carbon atoms, etc.; R11 is H or methyl; R12 is a radical having at least one primary, secondary or tertiary amino group if Y1 is -CH2- or -CO-; x, y, z, independently of one another, each have the values 0-250 and x+y+z=3 or greater [0019-0021, 0026-0027, 0030-0031, 0040, 0043, 0055, ]. Block a represents monomer A unit; block b, b’; b”, b”’, and b”” represent monomer B unit [0072].
The examiner submits that the above monomer A reads on the claimed M1; the above monomer B reads on the claimed M2.
Regarding claim 5, Sulser teaches that the sequence of the structural building blocks a, b, b', b'', b''', b'', c, d and optionally e may be alternate, statistical, blockwise or random [0073].
It would have been obvious to one of ordinary skill in the art at the time of filing to select polymer P having alternate, statistical or blockwise sequence in Sulser’s composition, as these are expressly disclosed as being useful in this capacity. It has been established that selection of a known material based on its suitability for its intended use is prima facie obvious (Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945)). See MPEP 2144.07. These structure sequences meet the claimed nonrandom distribution.
Regarding claim 6, Sulser teaches that the sequence of the structural building blocks a, b, b', b'', b''', b'', c, d and optionally e may be alternate, statistical, blockwise or random [0073].
"It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose" In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980), MPEP 2144.06.I). Since nonrandom distribution (alternate, statistical, and blockwise) and random distribution are recognized as equivalents for the same application, one of ordinary skill would be able to combine a nonrandom polymer P and a random polymer P in the same composition. The random polymer P reads on the claimed first anionic polymer; the nonrandom polymer P reads on the claimed second anionic polymer.
Regarding claim 7, the nonrandom polymer P reads on the claimed second anionic polymer and it can be in form of block as stated above.
Regarding claim 9, Sulser’s block a in formula (VIII) reads on the claimed M1, with X1M corresponding to the claimed R1; R15 corresponding to the claimed R2; R13 and R14 corresponding to the claimed R3 and R4.
Sulser’s block b in formula (VIII) reads on the claimed M2, with R15 corresponding to the claimed R5; R13 and R14 corresponding to the claimed R6 and R7; Y (-CH2-COO-) corresponding to the claimed (CH2)m-(CO)p-X- wherein m=1, p=1, and X=O; (C2H4O)x-(C3H6O)y-(C4H8O)z-R2 corresponding to the claimed R8.
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Susler et al (US 20100197840 A1) in view of Yamakawa et al (US 20080196629 A1) as applied to claim 1 above, further in view of Klaus et al (EP 2152647 B1, machine translation is referenced herein).
Regarding claim 10, Sulser teaches that the aqueous composition Z may further comprise additives such as accelerators [0088], but does not specify the accelerators.
In the same field of endeavor, Klaus teaches an aqueous preparation of polymer-modified setting accelerators suitable for use in hydraulically setting systems in concrete and mortars [0033], comprising at least one setting accelerator and one or more polymers having a cationic charge [claim 1]. The one or more polymers having a cationic charge include homopolymers or copolymers of diallyldimethylammonium chloride (DADMAC) [claim 4]. Klaus teaches that aqueous compositions comprising setting accelerators and cationically stabilized polymers are stable and do not coagulate or precipitate during storage as compared to accelerators without cationically stabilized polymers [0004-0009].
It would have been obvious to one of ordinary skill in the art at the time of filing to use the polymer-modified setting accelerator in the aqueous hydraulically setting composition, for the benefit of being stable and do not coagulate or precipitate during storage.
The homopolymers or copolymers of diallyldimethylammonium chloride (DADMAC) reads on the claimed cationic linear polyamine.
Klaus teaches that the content of the aqueous preparations of the polymer-modified setting accelerators in the setting accelerators and cationically stabilized polymers is preferably from 10 to 75% by weight; and the weight ratio of cationically stabilized polymers to setting accelerators is most preferably from 1:1 [0031-0032]. Therefore, the content of polydiallyldimethylammonium chloride is most preferably 5-37.5 wt% in the aqueous preparations, as calculated by the examiner, overlapping the claimed range of 5-15 weight-%. A prima facie case of obviousness exists where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" (MPEP 2144.05.I).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JIANGTIAN XU whose telephone number is (571)270-1621. The examiner can normally be reached Monday-Thursday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert Jones can be reached on (571) 270-7733. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JIANGTIAN XU/Primary Examiner, Art Unit 1762
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